Joint Legal Custody Arrangements
When parents separate and contemplate their child’s custody, they tend to focus on where their child is going to spend their time. This is physical custody, and it’s an essential consideration, to be sure. However, an equally significant determination is what the legal custody arrangement will be between co-parents. Legal custody determines both your right to access information about your child, as well as your methods for making emergency, day-to-day, and major decisions affecting your child’s well-being.
Major decisions will need to be made more often than you may think, and unless one parent has sole legal custody (the right to make these decisions without first consulting with the other parent), this will mean engaging in “good faith discussions” with your
co-parent.
A common legal custody determination in many court orders and agreements is an award of joint legal custody to the parents. Generally, this means that both parents will have full and complete access to information about their child and will be responsible for making emergency and day-to-day decisions while their child is under their physical care. Then, for more significant decisions of lasting consequence, the parents are supposed to engage in
good-faith discussions, to attempt to make these decisions jointly.
A well-drafted order or agreement will include a provision about what happens when the parents cannot ultimately agree on a major decision. This tie-breaker provision is important and may come into play, but not before a good-faith discussion has happened – or at least been attempted – between the parents.
Major Decisions
The types of major decisions that require a good-faith discussion are usually those related to non-emergency medical or mental health care, education, or participation in activities. These can be things like choice of doctors, choice of prescription medications or methods of treatment, choice of school, and choice of regular extra-curricular activities. These decisions, like everything else relating to your child, should be evaluated based on what is in your child’s best interest, and not on what is most convenient or best for either or both parents. However, reasonable minds (and even the most amicable co-parents!) can and will sometimes disagree about what is in their child’s best interest.
Starting the Good-Faith Discussion
Sometimes it will be obvious when parents need to engage in a good-faith discussion to make a major decision about their child. For instance, if your child is approaching school age but not yet Kindergarten-ready, you may need to determine whether and where they’ll attend a Pre-K program. However, an important piece of major decision-making involves identifying when a decision needs to be made at all. Usually, this comes up when there’s a problem that needs to be solved.
As an example, consider the child who’s acting out in school and whose grades have begun to suffer. The large-scale question facing parents is “How do we help our child do better?” A dedicated co-parent should first choose to approach the problem with an open mind as to possible solutions and a willingness to hear the other parent’s perspective. To start the good-faith discussion, she could send an email to the other parent like the below:
“I’m concerned about Billy, since he was given in-school-suspension last week for being disruptive in class. I also saw on his progress report that he’s failing two classes. What do you think about scheduling a meeting at his school to discuss options?”
The lines of communication have then been opened, but no actual decisions have been made. Ideally, the school will present some options, and then you can move towards discussing these major decisions as co-parents.
Continuing the Good-Faith Discussion
Once a discussion has been initiated, both parents should be responsive and engaged and should present their initial position clearly and concisely, with facts to back up why they think it’s in their child’s best interest. It may be a very brief discussion, as the other parent may simply agree! In the event someone needs more information, though, parents should ask each other fact-based questions and engage in a cordial dialogue. Each should take a reasonable amount of time to sincerely consider the other’s opinion and do their own research before stating a final position. A sample good-faith discussion about Billy is below:
“As a follow-up after our meeting at his school, I liked the teacher’s idea of getting Billy some counseling, as it seems like he’s still adjusting to our divorce. She mentioned there is school-based counseling available, or that we could look for someone on our own. I like the idea of starting off with the school-based counseling, so that we don’t have to worry about transportation, and I’d love to get him set up with this within the month. What do you think?”
“I agree that counseling could be helpful for Billy and that the school-based seems easiest for now. My only concern is whether he’s going to be embarrassed if he gets pulled out of class to “see the counselor.” Do we know how that works?”
“Good point about not wanting him to be embarrassed. Why don’t I email the school and ask for some more details on the school-based counseling before we decide for sure. I’ll send that now and copy you on the email.”
“Sounds good. Let’s plan to make our final decision by the end of the month.”
Discussion Dos and Don’ts
- DO request an initial response from your co-parent by a certain date (be reasonable).
- DON’T expect or demand immediate responses.
- DO tell your child their parents are talking and will make the decision together.
- DON’T make promises to your child before a decision is made.
- DO express your position to the other parent, with reasons to back it up, and engage in a back and forth.
- DON’T jump right to asserting your tie-breaking authority or demean or disparage the other parent’s opinion.
- DO keep separate email threads for each specific decision-making discussion.
- DON’T let discussions about major decisions get lost among other, multi-topic conversations.
- DO have joint meetings with your co-parent and professionals where you seek the professional’s advice, to help guide the decision.
- DON’T alienate these professionals by arguing in these meetings or asking them to take sides.
Good-faith discussions prior to making major decisions are a pillar of positive co-parenting under joint legal custody arrangements. The parents who make sincere efforts to engage in these discussions and follow the above Dos and Don’ts will be rewarded with a reduction in conflict, a better co-parenting relationship, and a happier, healthier child.
